Friday, April 15, 2011

Each week, Wise Law Blog will review recent decisions from the Ontario Court of Appeal.

Davis v. Crawford. An appeal regarding a lump sum spousal support award. Mr. Crawford and Ms. Davis had been in a common law relationship for 23 years before separating (he was 64, she 66). Both parties were retired, and their incomes were both solely generated by pensions. However, the sale of a cottage property had generated income, and Ms. Davis' application for support was for a lump sum equal to her share of the net proceeds of that sale.

The trial judge noted that Mr. Crawford's assets were difficult to quantify, due to his remaining part-ownership of his former business from which he had retired, a payment of dividends from his business to his daughter (which the trial judge characterized as him being the beneficial owner thereof), and the likelihood that Mr. Crawford was engaged in a business venture with his new partner of tearing down and rebuilding a cottage. She also noted that Ms. Davis made significantly less than Mr. Crawford, and ultimately awarded Ms. Davis a lump sum of $135,000 for support, which by the judge's figuring if invested would provide approximately $1000 monthly income for fifteen years.

Mr. Crawford appealed, arguing that the trial judge's conclusions about his assets beyond his pensions were speculative, and further that the decision was contrary to the principles set forth in Mannarino v. Mannarino about lump sum decisions only being appropriate in circumstances where there was risk that periodic spousal support payments might not be made, and suggested that the lump sum was an improper distribution of capital by the trial judge. He also pointed out that he had voluntarily paid Ms. Davis' living expenses for a time after the separation, and had also provided for her car payments and medical benefits.

The Court of Appeal dismissed the appeal. In regards to Mr. Crawford's assets, the Court found that the trial judge's findings went to his credibility given his lack of explanation why he gave so much money to his daughter or why he had not produced any recent financial statements of the company in which he retained a fifty-percent interest. (An attempt by Mr. Crawford to produce fresh evidence on appeal was also denied, as the Court determined none of the new evidence could be considered important enough or able enough to change the outcome of the case to overcome the failure to adduce it at trial.)

In regard to the appropriate use of lump sum payments, Justices Simmons and Lang noted that both the Family Law Act and Divorce Act provide authority to order a lump sum support payment as the court considered reasonable, and that the previous leading case, Mannarino, did not appear to fall in line with the legislative intent behind those two statutes. (This effectively overrules much of Mannarino, although the Court did allow that lump sum payments are primarily effective where periodic payments would be risky.)

Further, the Court also pointed out that any lump sum payment would have the effect of distributing capital; the important element would be what the intent of redistributing that capital would be, and in this case the Court felt that the trial judge's intentions were clear: she had both expressed concern that, given her belief as to Mr. Crawford's lack of credibility regarding his financial standing and his failure to make proper financial disclosure, there was a real risk he would fail to make periodic support payments, and had further explained her decision as to the amount by demonstrating - albeit with a lesser amount of detail than the Court would have liked - that it would provide for a monthly income for a defined period of time. Read-the-whole-case rating: 3.

R. v. Yadegari. Mr. Yadegari was tried and convicted of multiple offenses related to the export of two pressure transducers to an individual in Iran. Pressure transducers are instruments capable of measuring absolute pressure of a contained gas, and since they are an essential component of gas centrifuge enrichment of uranium, their sale and export to Iran is thus restricted under the United Nations Act, the Exports and Imports Permits Act, and the Nuclear Safety and Control Act.

Mr. Yadegari appealed on the basis that the trial judge improperly interpreted the portion of the regulations which defined how a pressure transducer would attract restriction under those statutes, and further appealed the reasonableness of his conviction and his sentence.

The Court dismissed the appeal on conviction. Mr. Yadegari's appeal on the technical properness of the conviction, based on his argument that a restricted pressure transducer's three pressure sensing elements would be constructed from sixty percent nickel by weight or greater, and in his case two of the three elements were made of 72 percent nickel by weight. The Court went to the listed Specifications which stated that "pressure sensing elements made of or protected by [a specified metal or metal alloy] with more than 60% nickel by weight," and decided that the trial judge's decision satisfied this requirement; "pressure sensing elements" did not necessarily mean all elements of the transducer. The Court also summarily dismissed an argument that the trial judge's findings as to the accuracy of the transducers was in error by demonstrating that the transducers did not satisfy the area of concern within the specifications.

The appellant also attempted to argue that his conviction on the count of knowingly exporting restricted goods to a person in Iran was improper, as the Crown had not proven the location of the purchaser nor his knowledge of that location, and had not proven that the transducers were to be used for a nuclear-related purpose. The Court agreed that the case against Mr. Yadegari on this count was primarily composed of circumstantial evidence, but pointed out that, viewed cumulatively, there was ample evidence to demonstrate that Mr. Yadegari knowingly attempted to export the transducers to a person in Iran, including emails that suggested that he send the transducers to "an embargoed country," e.g. Iran, and further that he informed one of his suppliers that his client was in Iran, and accordingly dismissed this line of appeal.

Mr. Yadegari also appealed his sentence. Although the Court was not sympathetic to his argument that his overall sentence was too harsh as it was based in part on United States sentence precedents (as Mr. Yadegari had not pled guilty and therefore attracted a higher sentence, and further his conduct was serious enough to merit his sentence), they did agree that since the trial judge had failed to find evidence that the transducers were to be used for a nuclear-related purpose, that his sentence on that count merited a slight reduction. Accordingly, they lowered his sentence on that count by three months. Read-the-whole-case rating: 1. Sounds like a sexy case; is not that thing at all.

R. v. Henry. An appeal by the defendant in a possession of cocaine for purpose of trafficking case. Mr. Henry's appeal was based on the fact that he felt his plea of guilty was not proper.

Mr. Henry pled guilty after his counsel heard a recording of police communications from a surveillance operation where Mr. Henry was not the target but was a person of interest. A police officer had claimed that he had seen Mr. Henry with a cellphone, which Mr. Henry was prohibited from having under an interim judicial release order. On the recording, counsel thought they heard one of the officers say that Mr. Henry had a cellphone, which would have provided the officers with the reasonable and probably grounds to apprehend him, which in turn gave them the opportunity to discover the cocaine he was carrying on his person. Trial counsel felt that this ended the possibility of a constitutional challenge against the apprehension of Mr. Henry and therefore advised their client to plead guilty.

However, Mr. Henry's counsel heard incorrectly: at no point on the recording did police mention that Mr. Henry had a cellphone. (They were not provided with a transcript when they heard the recording.) Upon listening to the recording, the Court of Appeal noted that not only did the police not say anything about seeing a cellphone, but further their utterances indicated that the police were aware that what they had seen did not so far give them reasonable and probable grounds to stop Mr. Henry.

The Crown argued that Mr. Henry did not have an absolute right to review every item of disclosure, and that his experienced counsel reviewed the communications and found that a defense was no longer viable and that therefore the plea should stand. However, the Court of Appeal disagreed, stating that a valid guilty plea demands that the plea be an informed one. As in this case, Mr. Henry was simply not properly informed about his potential options, as his counsel mistakenly told him he had no chance at a constitutional challenge. Therefore they upheld the appeal and ordered a new trial. Read-the-whole-case rating: 2.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

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Wise Law Blogfeatures timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

Launched on April 5, 2005, Wise Law Blog also highlights key decisions of Canadian courts, with focus on Ontario Family Law, Ontario Employment Law and other areas of interest.

Garry J. Wise is primary contributor to Wise Law Blog. He is a Canadian litigation lawyer who practices with Wise Law Office,Toronto. He is a graduate of Osgoode Hall Law School and was called to the Ontario Bar in 1986.

Garry's colleagues at Wise Law Office, as well as occasional guest bloggers, also contribute to Wise Law Blog.

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